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Unfair labour practice: Wal-Mart appeals

In Wal-Mart Canada Corp v United Food and Commercial Workers, Local 1400, the United Food and Commercial Workers, Local 1400, ("the Union") filed an unfair labour practice application with the Saskatchewan Labour Relations Board ("the Saskatchewan Board") in February of 2005. The Union alleged that the closure of a store in Jonquière, Quebec, shortly after the Quebec Labour Relations Board certified the United Food and Commercial Workers ("UFCW") to represent the employees at the store, was intended to intimidate Wal-Mart employees across Canada and specifically in Saskatchewan. In response, Wal-Mart asked the Saskatchewan Board to summarily dismiss the Union's application on the basis that the Board had no jurisdiction to inquire into Wal-Mart's conduct in Quebec. The Saskatchewan Board did not accept this argument. Wal-Mart then applied to the Saskatchewan Board for reconsideration of the decision, but that application was dismissed. Wal-Mart then sought judicial review of the Saskatchewan Board's decision in the Court of Queen's Bench, but this further application was again dismissed. Wal-Mart then appealed the dismissal of its judicial review application to the Saskatchewan Court of Appeal.

In the Court of Appeal proceeding, Wal-Mart raised three issues. First, did the Court err in failing to review the substance of the Board's decision regarding jurisdiction to deal with Wal-Mart's unfair labour practice application? Second, assuming the judge should have taken on that issue, did the Board err in deciding the jurisdictional point? Third, was the chairperson of the Board entitled to render a decision as he was removed from the Board prior to the end of the hearing?

The Court of Appeal decision ([2010] S.J. No. 415), which dismissed the appeal, held that the judge did not err in declining to review the Board's decision on jurisdiction. Courts should be reluctant to review interim decisions and the evidentiary record had not been fully developed. Given the conclusion that the judge did not err in refusing to consider the jurisdictional argument, it was not necessary for the Court to examine the details of Wal-Mart's position on this issue. With regards to the final issue, the Union highlighted that Section 4(1.2) of the Saskatchewan Trade Union Act authorizes a Board member to complete work in relation to a hearing so long as the hearing began before the expiration of his or her appointment. Wal-Mart contended that the chairperson's appointment did not expire but was terminated. The Court favoured an expansive interpretation of the word "expire" and held that it comfortably includes the situation where a Board member's appointment was terminated as a result of a new Order-in-Council and as such the chairperson was entitled to render a decision on the matter.

Given the fact that Wal-Mart has twice taken Board rulings on interim-type issues to the Supreme Court of Canada, it will not come as a surprise to the labour relations community if this case is the subject of another appeal.